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In re B.O.

Court of Appeals of Ohio, Sixth District, Huron

January 6, 2017

In re B.O.

         Trial Court No. SO 2015 00007

          Paul D. Dolce, for appellant.

          Daivia S. Kasper, Huron County Prosecuting Attorney, and Dina Shenker, Assistant Prosecuting Attorney, for appellee.

          DECISION AND JUDGMENT

          YARBROUGH, J.

         I. Introduction

         {¶ 1} Appellant, B.O., appeals the judgment of the Huron County Court of Common Pleas, Juvenile Division, adjudicating him delinquent, placing him in the legal custody of the Department of Youth Services for a period of six months, and ordering him to serve 90 days in detention. We affirm.

         A. Facts and Procedural Background

         {¶ 2} On August 24, 2015, the state filed a delinquency complaint in the trial court, charging appellant with one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree if committed by an adult. The complaint alleged that appellant, a 12 year old child at the time, touched his half sister's vaginal area with his tongue and had her touch his penis with her hand. The victim was seven years old at the time of the offense.

         {¶ 3} Following preliminary discovery, appellant filed a motion to dismiss, in which he argued that the charges against him should be dismissed because the charges violated his constitutional rights. Specifically, appellant cited to a decision of the Supreme Court of Ohio that held that R.C. 2907.02(A)(1)(b), the statutory rape statute, was unconstitutional as applied to a child under the age of 13 who engaged in sexual conduct with another child under the age of 13 because both children would technically be guilty under the statute since statutory rape is a strict liability crime. In re. D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, syllabus. Charging only D.B. with statutory rape was found to be a violation of D.B.'s right to equal protection. Id. at ¶ 30.

         {¶ 4} Analogizing the elements of the statutory rape statute with those under R.C. 2907.05(A)(4), appellant concluded that it was unconstitutional for the state to charge him with gross sexual imposition for nonforcible sexual contact with someone under the age of 13 where he was also under the age of 13.

         {¶ 5} Upon consideration of appellant's argument, the trial court issued its decision on November 5, 2015. In its decision, the court noted that gross sexual imposition and statutory rape have different elements. In particular, the court concluded that gross sexual imposition, unlike statutory rape, is not a strict liability offense because it requires a showing that the perpetrator touched an erogenous zone of another for the purpose of sexually arousing or gratifying either person. Under the court's reasoning, this additional mens rea element helped differentiate the victim from the offender in these cases and resolved the constitutional concern raised in In re D.B. concerning statutory rape. Ultimately, the court denied appellant's motion to dismiss, and the matter proceeded through discovery.

         {¶ 6} On April 19, 2016, an adjudicatory hearing was held, and appellant was found to be delinquent. At his subsequent dispositional hearing, appellant was ordered to serve 90 days in detention, and was placed in the legal custody of the Department of Youth Services (DYS) for a period of six months. The trial court suspended 30 days of the detention sentence, as well as the six month DYS sentence, upon certain conditions. It is from this order that appellant has timely appealed.

         B. Assignment of Error

         {¶ 7} On appeal, appellant assigns the following ...


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